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In this case, heard by the Employment Appeal Tribunal (the "EAT"), the Claimant – Mrs McIntosh – was appealing against a finding by the Employment Tribunal that St Mark’s Primary School did not discriminate against her when it suspended her and referred her for a disciplinary hearing after she made an allegation of racism against the Head.
The Claimant became Deputy Head of the school in September 2002. The Head, Mrs Standing, joined the following January. The Head experienced management performance difficulties with the Claimant from early on and, during discussions between them in March 2009, the Claimant made a general allegation of lack of respect and discrimination on the part of Mrs Standing. The two continued to have problems throughout 2009 and the Claimant raised her concerns with school Governors and staff. Matters came to a head in December 2009, when Mrs Standing initiated an informal capability procedure in respect of the Claimant.
The Claimant decided to take advice and drafted a fairly long document, titled "PM1", to send to her trade union representative. On page four of PM1, she wrote that Mrs Standing was "a bully and closet racist”.
Unfortunately, on 11 January 2010, she mistakenly attached PM1 to an unrelated email addressed to 20 school staff members. One of the recipients of the email brought the comments to Mrs Standing’s attention. The following day, the Claimant apologised to her for sending the attachment, but did not specifically apologise for the allegation of racism. The Claimant was sent home and suspended later that day. Over the next few weeks, the Chair of the Governors investigated matters. Some staff members told him that the Claimant had been intimidating when asking them to delete her 11 January email. Feeling that the Claimant had a case to answer, the Chair arranged a disciplinary hearing.
At the disciplinary hearing, the decision was made to dismiss the Claimant. She appealed against this decision, but was unsuccessful.
Proceedings in the Employment Tribunal
Part of the Claimant’s case was that she had been victimised because of her allegation of racism, contrary to section 2 of the Race Relations Act 1976. That section – now repealed – made it unlawful to treat someone less favourably because (among other things) they had made an allegation of racism. The section also provided that this only applied to allegations made in good faith.
The Employment Tribunal held that the allegation of racism in document PM1 was a protected act for the purposes of section 2 of the 1976 Act and that it was made in good faith. It also found that the suspension and disciplinary hearing of the Claimant constituted less favourable treatment. However, it accepted the school’s evidence that this less favourable treatment was not because of the allegation. For this reason, the claim of victimisation failed. Rather, the Employment Tribunal stated (in paragraph 65 of its judgment), the suspension and disciplinary hearing were due to:
1. the Claimant's refusal to retract, explain or follow up her allegation of racism – she had apologised for sending the email but not for its contents, and
2. her attitude that she was entitled to adopt that position, even though it resulted in the allegation becoming “a running sore”.
In paragraph 66, the Tribunal added:
"The protection afforded by the victimisation statutory provisions is not intended to allow people to throw up an accusation and then refuse to explain it or justify it in any way. Furthermore, the context in which we have to consider the situation includes the evidence of intimidation which was before the disciplinary panels; and the sensitivities of a small management team."
Proceedings in the EAT
The Claimant argued that the Tribunal's conclusions were illogical: the school's decision to suspend her could not have been for the reasons set out in paragraphs 65 and 66 of the Tribunal’s judgment, because her refusal to retract or justify her allegation of racism took place after she had been suspended. She also maintained that she had been referred for a disciplinary hearing because of the allegation and not for the reasons given by the Employment Tribunal.
The EAT accepted that paragraphs 65 and 66 formed the centre of the Employment Tribunal’s conclusions, but said that the judgment had to be read in its entirety. In the context of the whole judgment, the statements in paragraph 65 about the reasons for the Claimant's suspension could be seen as including a reference to her earlier allegations against the Head (and her refusal to pursue them through the proper channels). The reference in paragraph 66 to the "sensitivities of the [school’s] small management team" was to the sensitivities arising out of the Claimant’s previous accusations against the Head, her failure to deal with them properly, the fact that she had discussed these issues with members of the management team and the difficulties that arose from that. So it was untrue to say that the Tribunal's findings were inconsistent with the sequence of events.
In relation to the disciplinary hearing, the Employment Tribunal’s statements were more self-evident and were not perverse.
Having determined that the Tribunal's judgment was sufficiently clear to enable the Claimant to understand why it had reached its conclusions, and that those conclusions were not unreasonable, the EAT dismissed the appeal.
The victimisation provisions in Section 2 of the Race Relations Act 1976 are now contained in section 27 of the Equality Act 2010. Although the wording of the new section is slightly different, the effect is the same, so it is possible to learn from this decision.
The case may offer some comfort to schools with employees who have accused other staff members of discrimination but refused to provide evidence to support their allegations. It indicates that if, as in this case, the situation has been brewing for a while and sensitivities have reached the point where it is no longer feasible to leave the situation unaddressed, then taking disciplinary measures will not necessarily amount to victimisation.
However, situations of this nature are inevitably sensitive and the legal position fact-dependent. If your school is in similar circumstances, we recommend that you seek professional legal advice before taking action.
If you require further information on anything covered in this briefing please contact David Smellie (firstname.lastname@example.org; 020 3375 7561) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Schools page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, Summer 2014
McIntosh v Governing Body of St Mark’s Primary School.pdf188kB